## THEATTORNEYGENERAL OF TEXAS

GROVER SELLERS AUSTIN al.'lkxAS

Honorable John R. Shook CriminalDistrict Attorney Bexar County San Antonio, Texas

Attention: Mr. L., J. Gittlnger First Assistant

Dear Sir: Opinion NO. o-6819 Re: Adoption of specialbudget'under R.B, 240, Acts 49th Legls.; issuance of timewarrants'for current expenses'

of county; and lncrease In salaries of county employees

We acknowledge receipt of your opinion request of September 11, 1945, reading In part as follows:

.

"The 49th Legislature of Texas, at Its regular session,passed S.B. No. 246, effectingcounties of not less than 300,000 nor more than 500,000 population,which Act under your OpinionNo. O-6721, approved July 24,'1945,became effective June 2, 1945.

"SaidLegislature also passedH.B. No. 240, under which Act the Auditor of Bexar County became the Budget Officer of said County Instead of the County Judge.

"BexarCounty has been operating its Budget in compliancewith the provisions~ of Article 689a, except that it hasused the fiscal year from August 1 to July 31, rather than the calendar year as its Budget year. In 1940, this office in response to a request for an opinion from The"HonorableCharlesW. Anderson, County Judge of Bexar County, ruled that the fiscal year und-erthe terms 'of Article 68% should begin on the 1st day of January and end on the 31st day of the followingDecember of each succeeding year, The Attorney General of the State of Texas had, before that time, ruled that the calendaryear should be the fiscalyear and the Budget year of counties of a populationbracket of Bexar County. InHan, John R. Shook, page 2 

### O-6819

spite of these rulings, however, the Budgets were made for the fiscal year, August 3 to July 

### 31, as above set out.

"Onaccount of the provisions of H.B. No: 240 and the existing conditions in Bexar County,-
a hiatuswas created from the period of August 1, 1945 to January 1, 1946,'inwhich period no Budget existed for Bexar County, the Budgetunder which it had been operating ending July 

### 31, 1945. The matter havingbeen presented to us, we ruled that itwas the duty of the County Jud,geof Bexar County to make an amended'or supplementalbudget to the 1944-1945 Budget, as~we doubted the authorlty'of the Auditor to make a Budget, except for the calendar year of 

### 1946,and subsequent calendar year, under the provisions of saidH&B. No. 240.. We also held that the ad valorem taxes for 1945 collected during the months of October,November and December 1945, shouldbe held and used for the purpose of creating a pay-as-you-goBudget for 1946, in accordancewith the provisions of H.B. No. 240; a copy of the above mentioned opinion Is created hereto,

"In accordancewith such opinions, the County Judge has prepared an amended or supplementalbudget In order that the duties and functions of Bexar County and its offfcesmay be carried on during said fnterlm period.

"Inpassing on the provisions of S,B. No, 246, this office held that the mandatory pay Increaseprovided in saidBill applied only to the officers named in said Act and their employees,deputies and assistants. A copy of this opinion Is attached hereto for your consfderation.
"Againactingupon said opinion and doubtless because itwas felt that a great many employees of Bexar County, equally deserving of increases in salhad been denied such increasesbecause of S.B. :?'246, the Commissioners'Court of Bexar County provided pay increase for all employeeswhich were set up in the lnterfmbudget preparedby the County Judge. In order to finance said pay Increases and other expenses of Bexar County, said Commissioners' Court voted to fssue Time Warrants not to exceed the amount of 

### $365,OOO,OO, This budget substantially provides for Increases In salary for employees,whoHon. John R. Shook, page 

### 3 O-6819

were not includedunder the provisions of S.B. No. 

### 246,and contains, in addition, a new budget object which was not Included In the 1944-1945 Budget.

"Theanticipated revenue In said amended or supplementalbudget, togetherwith the,unexpended balance In the General Fund for 

### 1944-1945, being Insufficient to pay the anticipated expenses of the County during the five month period, from August 1945 to January 1, 1946, by $175,000.00,the Com1,

missioners' Court voted to issue said $365,000.00 in Time Warrants to be issued only, If, as and when needed, the receipts of the sale of such Time Warrants being setup in the Budget as anticipated revenue.

"Bexar County has a Special Hospital Tax, under the provisions of which the people of Bexar County,by special election, voted'to levy lOq?on the $100.00 valuation to establish and maintain a county hospftal. This hospital tax Is levied inaddition to such part of the annual 259!constitutionalGeneral Fund levy as the Commissioners"Court deems necessary and the total of the General Fund levy and Special Hospital levy exceeds 25d per $100.00 valuation in the 1944- 1945 Budget.

"While I do not have the opinionbefore me, it is my impression that the Attorney General has previously held that said lOq!levy was not constitutional.

"At least a portion of the anticipated receipts from the sale of the TimeWarrants was set aside as receipts or revenues for said county hospital and was so set up on the Interimbudget as a part of the an ticlpated receipts for said hospital. Another portion of such anticipated receipts from the issuance of such Time Warrants was setup as anticipated receipts accruing to the Jury Fund. Another portion of such anticipated receiptswas setup on saLd Budget as anticipated receipts or'revenue for the City-County T.B. ControlBoard which latter expenditurewas not Included in the 1944-1945Budget, but which Board was createdby Act of the 49th Legislature,known as S.B. No. 339.

"At the creation of said Interimbudget, this office verbally ad,vised'the County Judge and the Commissioners' Court that some sort'ofmeasuring stick shouldbe adopted inmaking saidBudget, and suggested that the 1944-1945Budget be divided by.

Hon. John R. Shook, page 4 

### O-6819

12 and that this amount be mltiplled by the number of months provided for in said interimbudget ----- in otherwords that 5/l2 of the 1944-1945Budget be setun in the interimbudget to cover the anticipated expensesduring the pe'rlddfrom August 1; 1945 to January I, 1946. In many instances in said Budget, this amount has been exceeded not only' for the offices named in 5. B. No, 246, but also for other offices and institutionsnot affected by S.B. No. 246, as we construe it.

"In the light of the foregoing,we now desire to ask the following questions:
"(1) Can Time Warrants be authorized and issuedunder such circumstancesbefore a debt has actually been’createti. In other words, is it not necessary that scriptbe first issued and registered and that such Time Warrants be then used to retire said script?
"(2) Can Time Warrants be issued' to be payable out of the General Fund for a ,hospital created and to be maintained out of a Special Fund Levy when the'total of the General Fund Levy and Hospital Levy exceed the 257?levy provided by the Constitution?
"(3) Can TimeWarrants be issued,payable out of the General Fund proceeds of which Time Warrants will be transferred to the constitutionalJury Fund?
"(4) Can Time Warrants be issued out of t,he General Fund, the revenue ofwhich will be transferred to an object OPpurpose not included in the 1944-1945Budget, but whfch object or purposewas setup in the amended OPsupplementalbudget, such new budget purpose being created by statutepassed after the adoption of the 1944-1945Budget and before the adoption of the interimbudget?
"(5) Can the Commissioners' Court, in said amended OPsupplementalBudget, increase the salaries of employees,assistantsand deputies of officersnot named in S.B. No. 246, for the'interimperiod from Augustl, 1945, to January 1, 1946, OPshould the appropria-Hon. John R. Shook, page 

### 5 O-6819

tlons provided in said interimbudget be limited to 5/l2 of the amounts setup In the 1944-1945Budget?

“(6) Can the Commissioners"Court In said Interimbudget increase the appropriations for the officersprovided'inS.B. No. 

### 246, beyond 5/l2 of the 1944-1945Budget, plus 15$, such 

### 15% to be based on the~~pay roll of,the particular office as of March 1, 1945,under said S. B. No. 2461
II

. . . . .
We will answer your questions in the order In which they are asked.

I.

We answer the first part of your first ques!ion "No". We answer the second part of your first questlon Yes

.

The issuance of time warrants is governed by the Bond and Warrant Law of 1931. Article 2368, V.A.C.S.' That statute defines'time warrants as "anywarrant issuedby a city or county not payable'out of current funds". In orderto create such an obligationagainst the general fund of the county, the commis-. sioners' court must be expressly or im liedly authorized by statute to do so. Adams vs. McGill, 

### 146S.W. P2d) 332, error refused; Bexar County vs. Mann, 138 Tex. 99, 

### 157S.W. (2d) 

### 134. In the latter case, the'authority tb Issue bonds and allocate a portion of the 25g!

General~Fund Tax'as a sinking fund, for the,purpose. of buying votingmachines was authorized by Art. 2997a, S'ec.

### 6, V.A.C.S. This statute expressly provldes that the bond moneys are "tobe used for this purpose and no other." There is not only no statute authorizing the issuance of bonds OPtime warrants for the purpose of paying current operating expensesbut the Bond and Warrant Law (Art. 2 68a, V.A.C.S.) and the "payas YOU go"budget law (H.B.No. 

### 2407 contain provisionswhich are inconsistentwith such a practice. This budget law does not even authorize sity” "emergency expenditures in case of grave public necesas does Art. 6aga-11,V.A.C.S. It expressly provides that the "amountsbudgeted for current expenditures from the various 'fundsof the county shall not exceed the balance in said funds
as of January lst, plus the anticipated revenue for the current year forwhich the budget is made, auditor". as estimatedby the county

If this forrrmlais followed,there can be no necessity for and, therefore, no implied authority for a mortgage on the future revenues of the county to pay current operating expenses. Adams-vs. McGill 

### 146S.W. (2d) 332, error refused;For~eman vs. Gooch, 184 S.W. t2d) 481, error refused,want of merit.Hon. John R. Shook, page 

### 6 O-6819

The supposednecessity for Issuing time warrants mentioned in your letter is probably predicated on your opinion dated June 

### 15, 1945,'toHon.'EdgarGarvey, in which you .holdthat t,he"current 3%xar County~Auditor, collect s made from the tax'levy in October'; 1945, and collected.durlngthe months of October,^November,and December, the January Budget", 1945, have t'obe set aside'for ,and-cannotbe used'for paying obligatfonsarising under the 3.945~ budget". It is our vFew~that all taxes collected from the 1945 1evy"are to be considered as current
revenue for the purpose of paying the'obligations incurredunder the 1945 budget. You are correct in advising the Countg'~Judge, CharlesW'.Anderson, in your letter of July 

### 13, 1945, that "the fiscal year under the terms of Art. 

### 68% shouldbegin on the 1st day of January and end on the 31st day of the followingDecember of each succeedingyear". This.departmentmade that ruling in Its OpinionNo. O-2324,which was issued onMay 20, 1940. Under Article 

### 68ga-g-ii, V.A.C.S., the budget which is prepared in"' July.and adopted inAugust seems to be tied to the tax levy made in August for taxeswhich are to become due and payable on October 1st. This is made manifest by that part of Article 

### 68ga-ii reading as follows:

"When the budget has been finally approvedby the Commissioners'Court, the budget, as approved by the Court shallbe filedwith the Clerk of the County Court and taxes levied only in accordance therewith; and no expenditure of the funds of the county shall thereafterbe made except In strict compliancewith the budget as adoptedby the court."

The budget referred to here is the budget for the following calendar year. The taxes levied InAugust on the basis of the August budget are taxeswhich In contemplationof Article 

### 68gaare to be applied to the expendituresfor the following calendar year. This practice of levying taxesin August for use Ln thenfollowing calendar year worked well in practiceuntil the Legislature passedArticle 7255b,V.A.C.S., allowing a discount
on ad valorem taxes paid in advance. Prior to this law,~most of the taxes levied inAugust were paid In January of the following year, immediatelybefore they became delinquent on February lst, Article 

### 7336,V.A.C.S. After enactment of Article 7255b, the bulk of taxes levied in August are paid in Oc~tober, November and December following; in order to take advantage of the discount. IfArticle 

### 6&a, V.A.C.S,was the budget lawunder which Bexar County Is presently operating,we would be inclined to agree with your opinion holding that taxes collected in October; November andDecember, 1945, should be impounded for use in 1946.

H.B'.240, however, is now the budget law applicable to Bexar County and It became effectiveApril'9, 194.5. It expressly repeals "all laws and parts of laws in conflict"with it. It au-.

Hon. John R. Shook, page 

### 7 O-6819

thorlzes the county auditor to prepare a budget in January "to cover all proposed expendituresof the County Government for the current fiscal and calendaryear". This new budget law does not tie the budget to any particular tax levy. In this respect;it is in conflictwith the general county,budget law (Art. 

### 68ga, V.A.C.S.) and therefore repeals it. When your Commissioners' Court levied the taxeswhich became due and payable October lst, itwas operatingunder H.B. 240 and,notunder Art. 

### 6’8ga, g-11, V.A.C.S. It is true that H.B. 240 seems to contemplate that the countI& Included in the Act shall start ona 'payas you go" basis as of January 1, 

### 1946,but there is nothing in the Act which ties the 

### 1946budget to the 

### 1945taxes'or gives any authority for impounding the taxes paLd between October 1 andDecember 

### 31 foruse in 

### 1946. The 

### 1946budget will be based on "thebalances in said funds as of January 1, plus the anticipated revenue for the current year for which the budget is made, as estimatedby the county auditor." The "anticipatedrevenue for the'current year for which the budget is made means 

### 1946revernze and not 

### 1945revenue.

,..

If you will use your 1945 taxes to meet the obligations Incurredduring the calendaryear 1945, evidently sufficient funds to pay all obligations incurred in 1945,which are properly chargeable to current funds,will be available.

II.

We answer your second question "No".

You are correct In saying that this office has prevlously held that the lO# hospital levy was unconstitutional. We held this in our OpinionNo. O-2599 which was issued to Hon. E. G. Garveg, County Auditor of Bexar County, on September 

### 6, 1940: The reason for this hol~ding was that Section 1 of Article 4437a, V.A.C.S. was a special or local law, the enactment of which was prohibitedby Section 

### 56 of Article 

### 3 of the Texas Constitution. The last Legislature, however, amended Article 4437a,V.A.C.S.,
so that it now applies to "all counties in Texas having a population of 200,000 or more inhabitantsas shownby the last precedingFederal Census, in which are establishedhospitals jointly owned and operatedby any city and county inwhich said hospital is located.

. D

. *" Sec. 

### 3 of Art. 4437awas also amended to read as follows:

“Sec. 

### 3.A direct tax of not over 204 on the valuation of $100.00may be authorized and levied by the Commissioners'Court of such county for the purpose of erectingbuildings or other Improvements and for operatingand malntaining such hospital;provided that all such levy of taxes shall be submitted. . _

Hon. John R. Shook,page 8 

### O-6819

to the qualified taxpaying vote& of the'countg, and
a Mjorltg vote shallbe necessary to levy the".tax. Suticbssive

electionsmay be held to authoriie adaitlonal taxes hereunder proviaea the total tax Shall' not exceed the maximum of 209? per $100.00valuation;
as hereinaboveprovided." See 3.B; Non.339; Ch."'295, Acts @tKLegls., Reg. Sess., 1945,Vernon's Texas Session Laws. According to a ce??tlficate'~'of~electfofi which 18 diifile in the office of the Secretary of"State,, the qualifted taxpaying,' voters of Bexar County at a special electlon~held,onJuly 25; 1945, authorizea the Commissioners'Court to levy the 2O#'taX o%the' $100.00 v&luation for construction ana maintenance'of hospitals. This 204 tax authorizatioil is In lieu of the 10 eta%tihich.theLegislature undertook to authorize inArticles e437a and &437b, V.A.C.S.

We have also learned from the Secretary of State that since the special election on July 25, 1945, you held another special election in Bexar County on August 25.,

### 1945,for the purpose of reallocating the constitutional tax rates as authorized~ ' by Article 8, Sec. 9 of the Texas Constitution. At this election, the majority votes were "cast for the proposition authorlzlhg the Commissioners'Court of Bexar County, Texas, to reallodte the Etghtg Cents (80$!) constitutional maxiwm county tax upon the One Hundred Dollars ($100)valuation authorizedby SectFon 9 ofArticle 8 cf the Constitution of the State of Texas by changing the rate provided for county urposes from Twenty-five'cents (25#) to Forty-six Cents 

### (46#pon the One Hundred Dollars($lOO) valuation;by authorizing for Poaas and bridges Fifteen Cents (15$)'onthe One Hundred Dollars ($100)valuation;by changing the rate to pay jurors from Fifteen Cents 

### (15#)to Five Cents 

### (54)on the One HundredDollars ($100)valuation and by changing the rate for the erection of public bulldings, streets, sewers, water works and other permanent im rovements Cents (25d) to Fourteen Cents (144 P from Twenty-five

on the One Hundred Dollars ($100)valuation."

We are advised that an order has been entered by the Commissloners'Court levying taxes according to the new rates. The General Fund levy is, therefore,now 

### 46q! instead of 256 on. the $100 valuation.

III.

We answer your 

### 3rdquestion "No". Carroll vs.Williams, 109 Texas, 

### 155,202 S.W. 504, cited by you in your letter.

Iv.. . . _

Hon. John R. Shook, page 9 

### O-6819

We answer your 4th question "No" for the reason that time warrants cannotbe issuedunder the circumstancesmentioned in your letter.

V.

"Yes" (a) We aiiswerthe first part of your 5th question ;provided, that the salaries of employeesnot named in Senate Bill 246 shall not be Increasedbeyond the mt%x?.mrn salariesnow provid@dby statute forksuch positions; and provided that such salary fncreases operate from the date of'the order enteredby the Commissioners,'-Court.If a particular employtie

Is not covered by S.B'.

### 246,and he is getting the maximum salary now provided by statute for the position he holds,' he could not receive an increase from'the Commissioners'Court. If he is not being paid the maxlrmm salary provide8 for by law for the position he holds; he can receive an increase in salary Up to suchmaximum salary, if the Commissioners' Court enters 'oviaec"'the

Increasedoes not ex9 8n or&er for such Increase,pr teed 

### 15%based bn the March, 

### 1 Before the passage of S.B. 246 County asked us this question:f

### 45,payroll for such position. the CountyAuditor of McLennan

"Theother question i s whether or not when a 'countyis unable to retain experiencedpersonnel at the salary'schedule set up in a budget, would
an emergency amendment to the budget be justified under the provisions of Art. 68%-n?"

In our OpinionNo. Q-5184,we answered the question as follows:

"Whetheror not the situationspresented in godr inquiry are such as can be classified as a grave public necessity requiring emergency expenditureti.~urider

the budget law so as to permit the commi.ssioners'

court to amen&the budget, is a question of fact primarily to be passedupon by the commissioners'court.
Since that opinionwas issued on May 8, 1943, the Legislature has provided in S.B. 246 for a 15% pay Increase for certain county employeesand authorized the budget to be amended for that purpose. In Sec. 13 of S.B. 246, the Legislature found that "the further fact that Increased living cost and taxes have greatly lndreased the living expenses of the employees,deputies
ana asslstants'of the county officersnamed, so that said officers are,hairifig

a1fficulty in keeping adequate staffs of trained person; nel, creates an emergency and, an Imperativepublic necessity, etd. If the Legislature found that an emergency eXIstedwith reference to the employeesnamed in the Act, we are unable to say that the. . . _

Hon. John R. Shook, page 10 

### Q-6819

Commissioners'Court of Bexar County could not find that a similar emergency existswith reference to the courity'employees iiot named in the Act, so as to authorize a wage increase as to all county employees.

In no event, however, can employeesnot named in S.B. 246 receive an Increase in salary for any period prior to the adoption of an interim or supplementarybudget.

"No"

. (b) We answer the secofid part of your 5th question The Commissioners'Court has authbrity 'to provide for emergency expenditures involved in Increased salaries if-such Increased expenditures can be paid out of "current funds."

VI.

We answer your 

### 6th question "NO"."We have held in our Opinion No. O-6728 that Senate Bill 246 became effective on June 2, 1945, and is apflbable to Bexar County.

Section 4 of that Act provides:

"The Commissioners'Court of each of said counties shall grant'an Increase in the employees' salarybdget and &mend said bud&t for the necessary amount for all. of said county officesnamed In Sectibns 1 and 2 &eve, equal to fifteen 

### (15$)per cent increase in the salary of all the employees,deputies and assistants for all of said offices,based on the pay roll of the particular office as of March, 1945. The salaries of the officitils named in this Act shall not be Increasedbeyond the salaries fixed in this Act. D D

. en 

# bqy

. of IS It is clear that the officerswhose salaries are fixed 3.B. 246 do not receive the 15% increaseprovided for in Sec. The Legislature flnding that all 15% increase in the salaries the employees of thB officersnamed in S.B. 246 Is necessary In effject

a finding that a 15% Increase is sufficient. We do not believe the Commlssloners'Court would be authorized to increase the salaries of employeesmore than 15$, based on the March 1945 pay roll, and we can see nd reason for adopting a buclget for a particular officebeyond that'necessaryto pay the 1,ncrease in salariesprovided for "in Senate Bill No. 246. We are not prepared to say, however, that the Commissioners'Court is bound, in preparing an interimbudget, by the buaget which ended July 31, 1945. There is actually no specific statute covering your particular situation. H.B. No. 240 became effective on April 9, 1945, but its~ provislonswith reference,topreparing a budget seem to be operative only aft&r January 1, 1946. It however repeals "all laws and parts of laws in conflict"with it.Hon. John R. Shook, page 11 

### Q-6819

Articles 68ga-g to 11,V.A.C.S., are in conflictwith H.B, 240, Insofar-as they &uth&lze the Countg Judge, Instead of the County Auditor, to prepare a budget for Bexar County.

It is primarily the responsibility of the Commissioners' Court to adopt a budget. If the county,auditorprepares the interimbudget the Commissloners"Court, under H.B. 240, cati make 'lsuch

changes ib the luagetas in Its judgment the facts'
ana the law warrant and the interest of the taxpayersdemand",
so long as the current expendituresdo not exceed the current revenues'asdefined in that law. If, however, the county juage had prepared and the CommissionerstCourt haa aao'ptea si budget under Art. 6aga-9 to 11,V.A.C.S.,~for the calendaryear 1945,
we believe that it could now be amended by the Commissioners' Court. S.B. No. 246 expressly provides in Section 4, copied on page 11 above, that the budget shallbe amended to provide for the 15% salary increase'.' So, regardless ofwho the Commlssiofiers' Court designates to prepare the Interimbudget, we'believe that the amended or suPplementa budget previtiusly prebared,shouldbe revised in accbrdancewith this opinion and that an interimbudget shouldbe adopted as soon as possible.

Trusting that we have satisfactorilyanswered your questions,we are
Very ~trulyyours,

FD:rt:wc ATTORNEY GENERAL OF TEXAS

By s/Fag&nDickson Fagan Dickson Assistant

APPROVBD OCT 2, 1945 s/GroverSellers ATTORNEY GENERAL OF TEXAS
Approved Opinion CommitteeBy s/JAB Chairman